Proposal for a COUNCIL DECISION authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships
Date: 2016-03-02
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: civil union, divorce, enforcement of ruling, judicial cooperation in civil matters in the EU, judicial separation, jurisdiction, marriage, matrimonial law, mutual recognition principle, private international law

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   EUROPEAN COMMISSION  Brussels, 2.3.2016  COM(2016) 108 final 2016/0061 (NLE)   Proposal for a COUNCIL DECISION authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships   
 
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EXPLANATORY MEMORANDUM 

INTRODUCTION  
On 16 March 2011, the Commission adopted a proposal1 for a Council Regulation on 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions  in 
matters of matrimonial property regimes and a proposal2 for a Council Regulation on 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions 
regarding the property consequences of registered partnerships3. 

The legal basis for the proposed Council Regulations is Article 81(3) of the Treaty 
on  the  Functioning  of  the  European  Union.  The  proposals  concern  judicial 
cooperation in civil matters covering ‘aspects relating to family law’. This legal basis 
stipulates  that  measures  are  adopted  by  the  Council  acting  unanimously  after 
consulting the European Parliament.  

Starting in December 2012, the Commission proposals were discussed in the Council 
Working Party on Civil Law Matters (Matrimonial property regimes and the property 
consequences  of  registered  partnerships).  In  December  2012,  the  proposals  were 
discussed at a Council meeting and the Ministers agreed on certain guidelines aimed 
at facilitating negotiations on the two proposals.  

The European Parliament delivered its favourable opinion and comments on the two 
proposals on 10 September 20134. The comments of the European Parliament were 
taken into account, notably with regard to  keeping the exequatur  procedure in  both 
proposals  and  incorporating  provisions  on  enforceability  equivalent  to  those  laid 
down  in  the  Succession  Regulation5,  as  well  as  on  including  provisions  on 
jurisdiction based on the appearance of the defendant. At the request of the European 
Parliament,  provisions  on  choice  of  law  and  choice  of  court  were  included  in  the 
proposal on the property consequences of registered partnerships. 

By December 2014, most technical issues had been settled and the file was ready for 
a political agreement. The large majority of Member States were  keen to  adopt  the 
proposals  at  that  time.  However,  some  Member  States  had  difficulties  given  the 
politically  sensitive  nature  of  the  proposals.  The  Italian  Presidency  presented  the 
matter to the JHA Council, which decided to grant a reflection period until December 
2015 to Member States which continued to have difficulties. These difficulties were 
mainly linked to the fact that the institutions of same-sex marriages and/or registered 
partnerships were not known in a number of Member States. Some of these Member 
States  considered  that  the  compromise  texts  as  presented  to  the  Council  offered 
sufficient safeguards to ensure that their courts would not have to deal with foreign 
institutions unknown in their legal system. Other Member States, however, expressed 

COM (2011) 126 
COM (2011) 127 
In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark  annexed  to  the 
Treaties, Denmark did not take part in the adoption of the proposed Regulation and was not bound by 
it or subject to its application. In accordance with Articles 1 and 2 of the Protocol on the position of 
the  United  Kingdom  and  Ireland  annexed  to  the  Treaties,  Ireland  and  the  United  Kingdom  did  not 
give notice of their wish to take part in the adoption and application of the proposed regulations.  
A7-0253/2013 and A7-0254/2013 
Regulation  (EU)  No  650/2012  of  the  European  Parliament  and  of  the  Council  of  4  July  2012  on 
jurisdiction,  applicable  law,  recognition  and  enforcement  of  decisions  and  acceptance  and 
enforcement  of  authentic  instruments  in  matters  of  succession  and  on  the  creation  of  a  European 
Certificate of Succession. 

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concern  that,  even  if  the  future  instruments  would  not  require  them  to  introduce 
unknown  institutions  in  their  national  law,  the  recognition  in  their  country  of  the 
property consequences of such foreign institutions would have an indirect effect on 
their  national  family  law  and  policy.  For  most  Member  States,  it  was  key  to  adopt 
both proposals as a package so as to ensure equal treatment of couples throughout the 
Union. 

Intensive  consultations  took  place  in  the  course  of  2015,  in  particular  under  the 
Luxembourg  Presidency.  Modifications  were  introduced  in  the  proposals  to  make 
them  acceptable  to  all  Member  States.  Nevertheless,  after  considering  the  revised 
compromise texts, the Council concluded, at its meeting of 3 December 2015, that it 
would  not  be  possible  to  reach  an  EU-wide  agreement  for  the  adoption  of  the  two 
regulations  within  a  reasonable  period  of  time6.  However,  many  delegations  stated 
their  willingness  to  consider  establishing  enhanced  cooperation  on  the  matters 
covered by the regulations. 

From  December  2015  to  February  2016,  seventeen  Member  States  (Sweden, 
Belgium,  Greece,  Croatia,  Slovenia,  Spain,  France,  Portugal,  Italy,  Malta, 
Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and 
Finland)  addressed  a  request  to  the  Commission  indicating  their  wish  to  establish 
enhanced cooperation between themselves in the area of jurisdiction, applicable law 
and the recognition and enforcement of decisions in matters of matrimonial property 
regimes  and  jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of 
decisions regarding the property consequences of registered partnerships, and that the 
Commission should submit a proposal to the Council to that end. 

This proposal is the Commission’s response to these requests. 

LEGAL BASIS FOR THE ENHANCED COOPERATION  

Enhanced  cooperation  is  governed  by  Article  20  of  the  Treaty  on  European  Union 
(TEU)  and  Articles  326  to  334  of  the  Treaty  on  the  Functioning  of  the  European 
Union (TFEU). 

The Commission proposal for a Council Decision authorising enhanced cooperation 
in  the  area  of  jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of 
decisions in matters of the property regimes of international couples, covering both 
matrimonial  property  regimes  and 
the  property  consequences  of  registered 
partnerships, is based on Article 329(1) TFEU.   

MEASURES IMPLEMENTING ENHANCED COOPERATION  

The  Commission  proposal  for  a  Council  Decision  deals  with  the  authorisation  of 
enhanced  cooperation  in  the  single  area  of  jurisdiction,  applicable  law  and  the 
recognition  and  enforcement  of  decisions  in  matters  of  the  property  regimes  of 
international couples, covering  both matrimonial  property regimes  and the  property 
consequences  of 
for  specific  measures 
implementing  the  enhanced  cooperation  are  submitted  together  with  this  proposal. 
The key elements of these measures are outlined below. 

registered  partnerships.  Proposals 

12. 

Having regard to the Council's conclusions of 3 December 2015 and the requests of 
the Member States wishing to establish enhanced cooperation between themselves in 

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this  area,  the  measures  implementing  enhanced  cooperation  should  include  the 
following elements: 

(a) 

(b) 

a proposal for a Regulation of the Council on jurisdiction, applicable law and 
the  recognition  and  enforcement  of  decisions  in  matters  of  matrimonial 
property  regimes.  This  proposal  should  be  based  on  the  compromise  text 
presented in the JHA Council of 3 December 20157; 

a proposal for a Regulation of the Council on jurisdiction, applicable law and 
the  recognition  and  enforcement  of  decisions  in  matters  of  the  property 
consequences of registered partnerships. This proposal should be based on the 
compromise text presented in the JHA Council of 3 December 20158. 

The  objectives  pursued  by  the  provisions  on  matrimonial  property  regimes  and  the 
property  consequences  of  registered  partnerships  are  equivalent.  However,  the 
formulation of these provisions cannot be the same given the specificities of each of 
these institutions and, in particular, the fact that registered partnerships do not exist 
in  all  Member  States.  In  this  connection,  the  impact  assessment  accompanying  the 
2011  Commission  proposals9  found  that  cross-border  couples  in  registered 
partnerships face particular difficulties as this institution is not known in all Member 
States.  Tailor-made  rules  must  therefore  be  established  in  respect  of  marriages  and 
registered  partnerships,  which  makes  it  difficult  to  address  both  institutions  in  one 
single instrument. In order to facilitate the reading and application of the regulations 
by  the  authorities  of  the  Member  States,  the  two  institutions  are  treated  in  two 
proposals implementing enhanced cooperation in the area of jurisdiction, applicable 
law  and  the  recognition  and  enforcement  of  decisions  in  matters  of  the  property 
regimes of international couples, covering both matrimonial property regimes and the 
property consequences of registered partnerships. This approach also corresponds to 
the  Member  States'  request  that  enhanced  cooperation  corresponds  in  substance  to 
the  two  compromise  texts  presented  to  the  Council  on  3  December  2015  so  as  to 
ensure participation by as many Member States as possible. 

The  Communication  accompanying  the  2011  Commission  proposals  already 
emphasised that the scope of the area of civil justice cooperation concerned was the 
property regimes of international couples. The Council and the European Parliament 
also  dealt  with  the  two  original  Commission  proposals  as  a  package.  Finally, 
pursuant  to  Article  329(1)  TFEU,  according  to  which  Member  States  that  wish  to 
establish  enhanced cooperation between  themselves  must  specify the scope  of such 
enhanced  cooperation,  the  requesting  Member  States  indicated  that  they  wished  to 
establish  enhanced  cooperation  in  the  area  of  jurisdiction,  applicable  law  and  the 
recognition  and  enforcement  of  decisions  in  matters  of  both  matrimonial  property 
regimes and the property consequences of registered partnerships. 

In  view  of  the  above,  the  proposed regulations implement  enhanced  cooperation  in 
the single area of jurisdiction, applicable law and the recognition and enforcement of 
decisions in matters of the property regimes of international couples, covering both 
matrimonial  property  regimes  and 
the  property  consequences  of  registered 
partnerships.  In  order  to  ensure  non-discrimination  of  citizens,  the  proposed 
regulations should therefore be adopted simultaneously and be treated as a package 

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Council document 14651/15 + COR1 REV1 
Council document 14652/15 
SEC(2011) 327 final 

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4.1. 

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4.2. 

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for  the  purposes  of  the  establishment  of,  and  future  participation  in,  the  enhanced 
cooperation. 

ASSESSMENT  OF  THE  LEGAL  CONDITIONS  FOR  ENHANCED 
COOPERATION  

Authorising decision as a last resort and participation of at least nine Member 
States  

Article 20(2) TEU provides that the decision  authorising enhanced cooperation can 
be  adopted  by  the  Council  only  as  a  last  resort,  when  it  has  established  that  the 
objectives of such cooperation cannot be attained within a reasonable period by the 
Union as a whole, and that at least nine Member States must participate in it.  

As mentioned above, the Council concluded at its meeting of 3 December 2015 that 
it  would  not  be  possible  to  reach  an  EU-wide  agreement  in  relation  to  both 
regulations within a reasonable period of time10. The Council thus noted that no other 
solution  for  the  Union  as  a  whole  could  be  found  and  that  enhanced  cooperation 
could be used as a last resort.  

To  date,  the  Commission  has  received  requests  from  seventeen  Member  States 
(Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, 
Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and 
Finland) indicating their wish to establish enhanced cooperation between themselves 
in  the  area  of  jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of 
decisions in matters of matrimonial property regimes and the property consequences 
of registered partnerships. 

Area covered by the Treaties  

Article  20(1)  TEU  provides  that  enhanced  cooperation  can  only  be  established 
"within  the  framework  of  the  Union's  non-exclusive  competences"  and  Article 
329(1)  TFEU  provides  that  enhanced  cooperation  can  be  established  ‘in  one  of  the 
areas covered by the Treaties, with the exception of fields of exclusive competence’.  

the  property  consequences  of  registered  partnerships, 

The  seventeen  requesting  Member  States  have  requested  to  be  allowed  to  establish 
enhanced cooperation between themselves in the area of jurisdiction, applicable law 
and the recognition and enforcement of decisions in matters of matrimonial property 
regimes  and 
thereby 
establishing conflict-of-law rules in this area. Conflict-of-law rules are not included 
in  the  list  of  exclusive  competences  set  out  in  Article  3(1)  TFEU.  They  are 
mentioned as a specific item in the list of measures under Article 81(2) TFEU, with 
Article  81(3)  TFEU  distinguishing  between  conflict-of-law  rules  in  civil  and 
commercial matters in general and those concerning family law.  

21. 

Conflict-of-law rules in family law thus constitute a well-defined area falling outside 
the  Union’s  exclusive  competences,  within  the  meaning  of  the  Treaties,  in  which 
enhanced cooperation may be established.  

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4.3. 

Furthering  the  objectives  of  the  Union,  protecting  its  interests  and  reinforcing 
its integration process  

4.3.1.  General context  

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Taking  account  of  the  Impact  Assessment  and  the  Explanatory  Memorandum 
accompanying the 2011 Commission proposals, the purpose of enhanced cooperation 
is  to  provide  a  clear  and  comprehensive  legal  framework  covering  jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of  decisions  in  the  matter  of 
property  regimes  of  international  couples,  covering  both  matrimonial  property 
regimes and the property consequences of registered partnerships. The proposals aim 
in particular, in line with current trends in family law, at allowing parties a degree of 
autonomy in choosing the applicable law. 

In 2003 the Commission commissioned a study on matrimonial property regimes and 
the  property  of  unmarried  couples  in  private  international  law  and  internal  law11 
which  highlighted  the  existence  of  problems  in  this  area.  These  problems  arise  in 
particular  when  citizens  make  use  of  their  right  to  free  movement  in  the  European 
Union,  exposing  their  property  regimes  to  potentially  conflicting  laws.  In  2006  the 
Commission  adopted  a  Green  Paper12  on  conflicts  of  laws  in  matters  concerning 
matrimonial  property  regimes,  including  the  question  of  jurisdiction  and  mutual 
recognition, which further identified shortcomings in the existing situation. 

The  Commission  also  set  up  an  expert  group  to  assist  it  in  its  work  on  future 
legislative  proposals  composed  of  experts  acting  independently  of  the  Member 
States. A public hearing was organised on 28 September 2009, with 99 Member State 
participants. The expert group, as well as academics, lawyers, notaries and members 
of  the  civil  society  attended  the  forum  in  order  to  discuss  the  need  for  a  Union 
instrument on the property regimes of international couples.  
The  Stockholm  Programme13  called  for  the  principle  of  mutual  recognition  to  "be 
extended  to  fields  that  are  not  yet  covered  but  essential  to  every  day  life,  e.g. 
matrimonial  property  rights  and  the  property  consequences  of  the  separation  of 
couples". 

The 2011 Commission proposals were generally deemed necessary in order to treat 
coherently the property regimes of couples under a single applicable law and by one 
single  authority;  to  enable  international  married  couples  to  choose  the  law  to  be 
applied to their property; to increase legal certainty for registered partnerships with 
an  international  dimension  by  applying,  as  a  general  rule,  the  law  of  the  State  of 
registration to the property of registered couples; to enable citizens to have various 
procedures  handled  by  the  same  court  and  thereby  avoid  parallel  proceedings  and 
conflicting judicial decisions; and to improve predictability for international couples 
by simplifying procedures for the recognition and enforcement of decisions and the 
circulation of authentic instruments throughout the European Union. 

27. 

The proposals are also a key complement to Regulation No 650/2012 on jurisdiction, 
applicable  law,  recognition  and  enforcement  of  decisions  and  acceptance  and 

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ASSER-UCL Consortium,  Study  in  comparative  law on  the  rules governing  conflicts  of  jurisdiction 
and  laws  on  matrimonial  property  regimes  and  the  implementation  for  property  issues  of  the 
separation of unmarried couples in the Member States.  
See: http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 
COM(2006) 400 final. 
Official Journal C 115, 4 May 2010. 

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enforcement of authentic instruments in matters of succession and on the creation of 
a  European  Certificate  of  Succession.  This  is  so  because  the  liquidation  of  the 
property regimes is very often a question preceding the liquidation of the estate of a 
deceased person. The efficiency of the European Certificate of Succession would be 
substantially improved if uniform conflict-of-laws rules were applied to the property 
regimes of couples throughout the European Union. 

The  2011  Commission  proposals  were  important  as  they  concerned  around  16 
million international married couples in the EU who, for instance, live in a Member 
State other than their own or have property in another Member State. 

In  2007,  approximately  300 000  international  marriages  were  celebrated  in  the  EU 
and approximately 500 000 international marriages were dissolved (through divorce 
or death of one of the spouses). Over 460 million EUR are at stake each year when 
international  marriages  are  dissolved.  In  2007,  over  41 000  new  registered 
partnerships in the EU had an ‘international dimension’ with regard to their property. 
Around  10 000  registered  partnerships  end  in  separation  or  death  each  year.  In 
addition, the number of registered partnerships increases steadily, particularly as the 
number  of  Member  States  that  have  introduced  the  institution  of  registered 
partnerships has increased from 17 Member States in 2011 to 20 today. Accordingly, 
the number of liquidations of partnership  property  resulting from the dissolution of 
the partnership or the death of one of its members is increasing. 

4.3.2.  Current situation in the area of jurisdiction, applicable law and the recognition and 
enforcement of decisions in the area of the property regimes of international couples, 
including  both  matrimonial  property  regimes  and  the  property  consequences  of 
registered partnerships 

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32. 

Currently citizens face different practical problems with asset planning when they are 
in an international marriage or partnership. Union citizens increasingly move across 
national  borders  and  this  leads  to  an  increased  number  of  international  couples  or 
couples  with  an  international  dimension:  spouses  of  different  nationalities,  couples 
living in a Member State of which they are not nationals, owning assets in different 
Member States, or divorcing or dying in a country other than their own. The problem 
is that it is very difficult for people to know which courts have jurisdiction and which 
laws are applicable to their personal situation and the situation of their property. As a 
result, they face unintended, and disadvantageous, consequences not only in the daily 
management  of  their  assets  but  also  when  the couple  separates  or  a  member  of  the 
couple dies. 

Although  Union  rules  exist  on  jurisdiction  and  applicable  law  in  civil  and 
commercial matters and in some areas of family law, no such rules currently exist for 
property  regimes  or  international  couples.  The  subject  is  therefore  governed  by 
national law and, to a very limited extent, international agreements between Member 
States.  

The causes of current problems for couples in registered partnerships are the same as 
for  married  couples.  However,  there  are  some  important  additional  challenges  for 
couples in a registered partnership as the concept of registered partnership exists only 
in  20  Member  States,  not  all  Member  States  have  substantive  laws  governing  their 
property regime  and  even  fewer have  adopted jurisdiction  rules and  conflict-of-law 
rules.  

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34. 

The  proposed  regulations  cover  couples  who  are  formally  engaged  in  a  family 
institution, in particular marriage and registered partnerships. “De facto” unions are 
not covered. 

The purpose of this enhanced cooperation is to establish a clear legal framework in 
the participating Member States to determine jurisdiction and the law applicable  to 
the  property  regimes  of  international  couples,  covering  both  matrimonial  property 
regimes and the property consequences of registered partnerships, and facilitate the 
movement of decisions and authentic instruments on these matters between Member 
States. 

4.3.3.  Benefits of enhanced cooperation in the area of jurisdiction, applicable law and the 
recognition  and  enforcement  of  decisions  in  the  area  of  the  property  regimes  of 
international couples, covering both matrimonial property regimes and the property 
consequences of registered partnerships  

35. 

Seventeen  Member  States  have  requested  enhanced  cooperation  in  the  area  of  the 
property  regimes  of  international  couples,  covering  both  matrimonial  property 
regimes and the property consequences of registered partnerships: Sweden, Belgium, 
Greece,  Croatia,  Slovenia,  Spain,  France,  Portugal,  Italy,  Malta,  Luxembourg, 
Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and Finland. The 
total  population  of  these  seventeen  requesting  Member  States  is  340  million.  This 
represents  67%  of  the Union  population14.  This  means  that  a  significant  number  of 
the  estimated  16  million  international  marriages  in  the  EU15  will  benefit  from  this 
enhanced  cooperation.  The  greater  the  number  of  Member  States  participating  in 
enhanced cooperation, the greater the number of citizens that will benefit from it. 

36. 

Enhanced cooperation in the area of jurisdiction, applicable law and the recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples, covering both matrimonial property regimes and the property consequences 
of registered partnerships, would bring citizens the following benefits:  

(a) 

treating  the  property  regimes  of  couples  coherently  under  a  single  applicable 
law and by one single authority; 

(b) 

enabling international couples to choose the law to be applied to their property; 

(c) 

(d) 

(e) 

increasing  legal  certainty  for  international  couples  by  applying  -  as  a  general 
rule - the law of the State with which the couple has the closest connection; 

enabling  citizens  to  have  various  procedures  handled  by  the  same  court  and 
thereby avoid parallel proceedings and conflicting judicial decisions; and  

improving  predictability  for  international  couples  by  simplifying  procedures 
for  the  recognition  and  enforcement  of  decisions  and  the  circulation  of 
authentic instruments throughout the EU.  

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Eurostat information as of 1 January 2015 
(http://ec.europa.eu/eurostat/tgm/table.do?tab=table&language=en&pcode=tps00001&tableSelection=
1&footnotes=yes&labeling=labels&plugin=1) 
The  information  in  these  paragraphs  is  based  on  the  final  report  of  the  EPEC  Impact  Assessment 
Study  on  Community  instruments  concerning  matrimonial  property  regimes  and  property  of 
unmarried couples with transnational elements, 2010.  

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4.3.4.  Fulfilling the requirements of Article 20(1) TEU 

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4.4. 

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Article 20(1) TEU requires that enhanced cooperation aims to further the objectives 
of the Union, protect its interests and reinforce its integration process.  

One of the tasks of the Union is to offer its citizens an area of freedom, security and 
justice without internal frontiers, in which the free movement of persons is ensured 
(Article  3(2)  TEU).  The  area  of  justice  includes  developing  judicial  cooperation  in 
civil  matters  having  cross-border  implications,  based  on  the  principle  of  mutual 
recognition  of  judgments  (Article  81(1)  TFEU).  For  this  purpose,  the  Union  can 
adopt  measures  aimed  at  ensuring,  firstly,  the  mutual  recognition  and  enforcement 
between  Member  States  of  judgments  and,  secondly,  the  compatibility  of  the  rules 
applicable in the Member States concerning conflict of laws and jurisdiction (Article 
81(2)(a) and (c) TFEU).  

The harmonisation of rules on conflict of laws and jurisdiction facilitates the mutual 
recognition  of  judgments.  Indeed,  the  fact  that  courts  of  different  Member  States 
apply  the  same  rules  to  conflicts  of  jurisdiction  and  conflicts  of  laws  in  order  to 
determine the court competent to deal with a case and the law applicable to that case 
reinforces mutual trust in judicial decisions given in another Member State16.  

Enhanced cooperation in the area of jurisdiction, applicable law and the recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples, covering both matrimonial property regimes and the property consequences 
of  registered  partnerships  between  the  requesting  Member  States  would  further  the 
Union  objective  of  ensuring  the  compatibility  of  the  rules  applicable  in  Member 
States  concerning  conflicts  of  laws  and  jurisdiction.  Enhanced  cooperation  in  this 
area would increase the level of compatibility of Member State rules determining the 
court  competent  to  deal  with  a  matter  of  property  regimes  of  international  couples 
and  the  law  that  the  court  should  apply,  as  well  as  on  the  recognition  and 
enforcement  in  one  Member  State  of  decisions  on  this  matter  given  in  another 
Member State, as compared to the current situation in which no harmonised rules on 
conflicts of law and jurisdiction and on the recognition and enforcement of decisions 
exist in the area of the property regimes of international couples. 

Compliance with the Treaties and Union law  

In accordance with Article 326 TFEU, enhanced cooperation must comply with the 
Treaties and Union law.  

The  enhanced  cooperation  would  not  affect  the  existing  acquis.  It  would  be 
established  in  an  area  that  is  covered  by  the  shared  competences  of  the  Union  but 
where, to date, no common Union rules exist. The first Union instrument adopted in 
the  area  of  family  law,  Council  Regulation  (EC)  No  1347/200017,  set  out  rules  on 
jurisdiction,  recognition  and  enforcement  of  judgments  in  matrimonial  matters  as 
well as judgments on parental responsibility for children of both spouses given in the 
context of matrimonial proceedings. It did not, however, include rules on applicable 
law  concerning  divorce  nor  the  property  consequences  of  couples.  The  adoption  of 

16 

17 

Programme  of  measures  to  implement  the  principle  of  mutual  recognition  of  decisions  in  civil  and 
commercial matters, adopted on 30 November 2000 (OJ C 12, 15.1.2001, p. 1).  
Council  Regulation  (EC)  No  1347/2000  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  matrimonial  matters  and  in  matters  of  parental  responsibility  for  children  of  both 
spouses (OJ L 160, 30.6.2000, p. 19).  

EN 

9 

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43. 

4.5. 

44. 

45. 

Regulation (EC) No 2201/200318, which repealed and replaced Regulation (EC) No 
1347/2000  as  of  1  March  2005,  did  not  entail  any  change  in  this  respect.  The 
conflict-of-law  rules  regarding  divorce  and  legal  separation  were  adopted  in 
enhanced cooperation in Regulation (EU) No 1259/201019 by 16 Member States. The 
conflict-of-law  rules  regarding  wills  and  successions  were  adopted  by  Regulation 
(EU) No 650/201220. The question of conflict-of-law rules in the area of the property 
regimes of international couples, covering both matrimonial property regimes and the 
property  consequences  of  registered  partnerships,  should  complete  the  legal 
framework applying to international couples in the Union.   

Enhanced cooperation in the area of jurisdiction, applicable law and the recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples, covering both matrimonial property regimes and the property consequences 
of  registered  partnerships,  would  not  cause  discrimination  based  on  nationality, 
prohibited by Article 18 TFEU, because the proposed conflict-of-law rules would be 
universal  in  nature  and  would  apply  to  all  proceedings  before  the  courts  of  the 
participating  Member  States,  whatever  the  parties’  nationality  or  residence.  On  the 
other hand, the courts of the non-participating Member States will continue to apply 
their national conflict-of-law rules under their private international law.  

No  undermining  of  the  internal  market  or  economic,  social  and  territorial 
cohesion; no barrier to or discrimination in trade; no distortion of competition  

Article  326  TFEU  provides  that  enhanced  cooperation  must  not  undermine  the 
internal market or economic, social and territorial cohesion, and must not constitute a 
barrier  to  or  discrimination  in  trade  between  Member  States  or  distort  competition 
between them.  

Enhanced  cooperation  in  the  area  of  the  property  regimes  of  international  couples, 
covering  both  matrimonial  property  regimes  and  the  property  consequences  of 
registered partnerships, does not present problems as regards these legal conditions. 
Indeed, the proposals implementing  enhanced cooperation in  this area will serve to 
facilitate the proper functioning of the internal market by eliminating obstacles to the 
free  movement  of  persons  who  currently  face  problems  due  to  differences  between 
national laws  concerning  the  property  consequences  of  couples.  The  legal  certainty 
brought  about  by  harmonised  conflict-of-law  rules  in  this  area  would  thus  have  a 
positive  effect  on  couples  who  exercise  their  right  to  free  movement  between  the 
participating Member States.  

46. 

Given  the  nature  of  the  proposed  regulations,  which  concern  only  the  relations 
between two individuals, enhanced cooperation would not affect enterprises or legal 
relations in the market, or  trade or competition in the Union. Finally, the enhanced 
cooperation would not affect the territorial cohesion between regions of the Union.  

18 

19 

20 

Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the 
recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental 
responsibility, repealing Regulation  (EC) No 1347/2000. 
Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area 
of the law applicable to divorce and legal separation. 
Regulation  (EU)  No  650/2012  of  the  European  Parliament  and  of  the  Council  of  4  July  2012  on 
jurisdiction,  applicable  law,  recognition  and  enforcement  of  decisions  and  acceptance  and 
enforcement  of  authentic  instruments  in  matters  of  succession  and  on  the  creation  of  a  European 
Certificate of Succession. 

EN 

10 

   EN 

                                                 
47. 

48. 

49. 

50. 

4.6. 

51. 

52. 

In  providing  for  the  harmonisation  of  conflict-of-law  rules,  the  proposals  would 
considerably  simplify  the  lives  of  citizens  (and  legal  professionals)  as,  within  the 
participating  Member  States,  they  would  be  able  to  determine  jurisdiction  and  the 
law applicable to their property regimes and benefit from a simplified circulation of 
decisions and authentic instruments on this matter.   

Although  not  all  international  couples  in  the  Union  will  benefit  from  the  legal 
certainty and simplification brought about by enhanced cooperation, the situation of 
international  couples  before  courts  of  non-participating  Member  States  will  not 
deteriorate compared to the situation today. Indeed, non-participating Member States 
will  keep  their  status  quo  as  they  will  continue  to  apply,  as  they  do  today,  their 
national  law  (including  their  rules  on  private  international  law)  to  cross-border 
situations dealing with matrimonial property regimes and the property consequences 
of registered partnerships in order to determine what court should deal with a case on 
these matters and what law that court should apply. Non-participating Member States 
will also continue to apply, as they do today, their national law (including their rules 
on private international law) to the recognition and enforcement of decisions given in 
one of the participating Member States.  For their part, participating Member States 
will continue to apply, as they do today, their national law (including their rules on 
private international law) to the recognition and enforcement of decisions given in a 
non-participating  Member  State.  The  situation  regarding  matrimonial  property 
regimes  and  the  property  consequences  of  registered  partnerships  will  thus  be 
equivalent  to the situation regarding other  civil justice instruments in  which  not  all 
Member  States  participate,  such  as  Regulation  No  1259/2010  implementing 
enhanced  cooperation  in  the  area  of  the  law  applicable  to  divorce  and  legal 
separation and Regulation No 650/2012 on succession and wills. 

Furthermore, the application of the regulations on matrimonial property regimes and 
the  property  consequences  of  registered  partnerships  implementing  enhanced 
cooperation will not depend on the nationality of the members of the couple, that is, 
on whether or not the members of the couple are nationals of a participating Member 
State.  The  authorities  of  participating  Member  States  (for  example,  a  notary  or  a 
court),  which  are  bound  to  apply  the  regulations,  will  apply  such  regulations  to  all 
citizens that bring before them a matrimonial property matter or a matter concerning 
the property consequences of their registered partnership regardless of the nationality 
of the citizens. By the same token, if a couple composed of one or two citizens of a 
participating  Member  State  brings  their  matter  before  an  authority  of  a  non-
participating  Member  State,  the  authorities  of  such  non-participating  Member  State 
will  not  apply  the  regulations  but  their  national  law  (including  their  private 
international law) to deal with the international procedural aspects of the matrimonial 
property regime or the property consequences of the registered partnership. 

Enhanced  cooperation  will  not  therefore  cause  any  unjustified  differentiated 
treatment between citizens.  

Respecting  the  rights,  competences  and  obligations  of  non-participating 
Member States  

Article 327 TFEU requires that any enhanced cooperation respects the competences, 
rights and obligations of Member States that do not participate in it.  

The adoption of common conflict-of-law rules by the seventeen requesting Member 
States  would  not  affect  the  rules  of  the  non-participating  Member  States.  Non-
participating  Member  States  will  continue  to  apply  their  own  private  international 

EN 

11 

   EN 

law  rules  concerning 
enforcement of decisions in the matter of property regimes of international couples.  

jurisdiction,  applicable 

the  recognition  and 

law  and 

53. 

4.7. 

54. 

4.8. 

55. 

4.9. 

56. 

57. 

58. 

At  the  level  of  public  international  law,  there  are  no  international  agreements  on 
jurisdiction, applicable law and the recognition and enforcement of decisions in the 
matter  of  property  regimes  of  international  couples  (covering  matrimonial  property 
regimes  and  the  property  consequences  of  registered  partnerships)  between  the 
participating and the non-participating Member States that would be affected by the 
enhanced cooperation.  

Conclusion on the fulfilment of legal conditions  

On the basis of the foregoing, the Commission concludes that all the legal conditions 
set by the Treaties for the authorisation of the establishment of enhanced cooperation 
are fulfilled.  

Respect for fundamental rights  

Enhanced  cooperation  in  the  area  of  the  property  regimes  of  international  couples, 
covering  both  matrimonial  property  regimes  and  the  property  consequences  of 
registered  partnerships,  respects  the  fundamental  rights  set  out  in  the  Charter  of 
Fundamental  Rights  of  the  European  Union,  in  particular  Article  9  on  the  right  to 
marry and the right to found a family in accordance with national law and Article 21 
on  the  right  to  non-discrimination.  The  conflict-of-law  rules  proposed  in  the 
regulations 
to  all 
international couples bound by an institutional link, such as marriage and registered 
partnership,  in  the  participating  Member  States  without  discrimination  on  any 
ground.  

the  enhanced  cooperation  will  be  applied 

implementing 

Conclusion on enhanced cooperation  

The Commission considers that the benefits of establishing enhanced cooperation in 
the  area  of  jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of 
decisions  concerning  the  property  regimes  of  international  couples,  covering  both 
the  property  consequences  of  registered 
matrimonial  property  regimes  and 
partnerships, are numerous compared to the option of keeping the status quo and that 
the  advantages  of  establishing  enhanced  cooperation  in  this  area  outweigh  any 
possible disadvantage.  

The common conflict-of-law rules in the area of the property regimes of international 
couples  will  considerably  facilitate  the  lives  of  many  couples  in  the  participating 
Member  States.  This  is  in  line  with  the  Stockholm  Programme,  in  which  the 
European Council considered that the process of harmonising conflict-of-law rules at 
Union level should continue in areas where it is necessary, such as “…matrimonial 
property rights and the property consequences of the separation of couples".21  

Therefore,  the  Commission  proposes  authorising  the  establishment  of  enhanced 
cooperation  between  the  requesting  Member  States.  The  Commission  stresses  that 
enhanced cooperation in the area of jurisdiction, applicable law and the recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples, covering both matrimonial property regimes and the property consequences 
of  registered  partnerships,  is  open  at  any  time  to  all  Member  States,  in  accordance 
with  Article  328  TFEU,  and  encourages  Member  States  that  have  not  yet  so 

21 

Official Journal C 115, 4 May 2010. 

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12 

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requested  to  participate  in  the  enhanced  cooperation,  thus  boosting  its  benefits  and 
advantages. 

EN 

13 

   EN 

 
 
2016/0061 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising enhanced cooperation in the area of jurisdiction, applicable law and the 
recognition and enforcement of decisions on the property regimes of international 
couples, covering both matters of matrimonial property regimes and the property 
consequences of registered partnerships  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 329(1) thereof,  

Having  regard  to  the  requests  made  by  Belgium,  Bulgaria,  the  Czech  Republic,  Germany, 
Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, 
Slovenia, Finland and Sweden, 

Having regard to the proposal from the European Commission,  

Having regard to the consent of the European Parliament22,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Union  has  set  itself  the  objective  of  maintaining  and  developing  an  area  of 
freedom, security and justice in which  the free movement of persons is ensured. For 
the progressive establishment of such an area, the Union is to adopt measures relating 
to judicial cooperation in civil matters with cross-border implications.  

Pursuant to Article 81 of the Treaty on the Functioning of the European Union, those 
measures  are  to  include  promoting  the  compatibility  of  the  rules  applicable  in  the 
Member States concerning conflict of laws, including measures concerning family law 
with cross-border implications.  

On 16 March 2011, the Commission adopted a proposal for a Council Regulation  on 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions  in 
matters of matrimonial property regimes, and a proposal for a Council Regulation on 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions 
regarding the property consequences of registered partnerships.  

At  its  meeting  of  3  December  2015  the  Council  concluded  that  it  would  not  be 
possible to reach an agreement within a reasonable period by the Union as a whole for 
the adoption of the regulations. 

In  these  circumstances, Malta,  Croatia  and  Belgium  subsequently  addressed  requests 
to  the  Commission  by  letters  dated  14  December  2015,  15  December  2015  and  17 
December 2015 respectively, and Sweden, Greece, Slovenia, Spain, France, Portugal, 

22 

Official Journal C […], […], p. […].  

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14 

   EN 

 
                                                 
Italy,  Luxembourg  and  Germany  by  letters  dated  18  December  2015,  indicating  that 
they  wished  to  establish  enhanced  cooperation  between  themselves  in  the  area  of 
jurisdiction,  applicable  law  and  the  recognition  and  enforcement  of  decisions  in 
matters of matrimonial property regimes and the property consequences of registered 
partnerships and that the Commission should submit a proposal to the Council to that 
end.  The  Czech  Republic,  the  Netherlands,  Bulgaria,  Austria  and  Finland  addressed 
identical  requests  to  the  Commission  by  letters  dated  28  January  2016,  2  February 
2016,  9  February  2016,  16  February  2016  and  26  February  respectively.  In  total, 
seventeen Member States have requested enhanced cooperation. 

The enhanced cooperation should provide a clear and comprehensive legal framework 
in the area of the property regimes of international couples, covering both matrimonial 
property  regimes  and  the  property  consequences  of  registered  partnerships,  in  the 
participating  Member  States,  ensure  adequate  solutions  for  citizens  in  terms  of  legal 
certainty,  predictability  and  flexibility  and  facilitate  the  circulation  of  decisions  and 
authentic instruments between the participating Member States.  

In  accordance  with  the  Member  States'  requests  for  the  establishment  of  enhanced 
cooperation,  the  Commission  is  proposing  two  substantive  acts  implementing  the 
enhanced  cooperation,  one  concerning  matrimonial  property  regimes  and  the  other 
concerning the property consequences of registered partnerships. In order to cover the 
entire  scope  of  enhanced  cooperation  in  the  area  of  the  property  regimes  of 
international couples and to ensure non-discrimination of citizens, the two substantive 
implementing acts should be adopted simultaneously.     

The  conditions  laid  down  in  Article  20  of  the  Treaty  on  European  Union  and  in 
Articles  326  to  329  of  the  Treaty  on  the  Functioning  of  the  European  Union  are 
fulfilled.   

The  area  of  the  enhanced  cooperation,  namely  jurisdiction,  applicable  law  and  the 
recognition  and  enforcement  of  decisions  in  the  matter  of  property  regimes  of 
international  couples,  covering  both  matrimonial  property  regimes  and  the  property 
consequences  of  registered  partnerships,  is  identified  by  Article  81(2)(a)  and  (c)  and 
Article  81(3)  of  the  Treaty  on  the  Functioning  of  the  European  Union  as  one  of  the 
areas  covered  by  the  Treaties.  This  is  not  an  area  of  exclusive  competence  of  the 
Union. 

(6) 

(7) 

(8) 

(9) 

(10)  The  requirement  of  last  resort  in  Article  20(2)  of  the  Treaty  on  European  Union  is 
fulfilled in that the Council concluded on 3 December 2015 that the objectives of the 
proposed regulations could not be attained within a reasonable period by the Union as 
a whole.  

(11)  Enhanced  cooperation  in  the  area  of  jurisdiction,  applicable  law  and  the  recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples,  covering  both  matrimonial  property  regimes  and  the  property  consequences 
of registered partnerships, aims to develop judicial cooperation in civil matters having 
cross-border implications based on the principle of mutual recognition of judgments, 
and  to  ensure  the  compatibility  of  the  rules  applicable  in  the  Member  States 
concerning conflict of laws. Thus, it furthers the objectives of the Union, protects its 
interests  and  reinforces  its  integration  process  as  required  by  Article  20(1)  of  the 
Treaty on European Union.   

(12)  Enhanced  cooperation  in  the  area  of  jurisdiction,  applicable  law  and  the  recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 

EN 

15 

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couples,  covering  both  matrimonial  property  regimes  and  the  property  consequences 
of registered partnerships, complies with the Treaties and Union law, and it does not 
undermine the internal market or economic, social and territorial cohesion. It does not 
constitute a barrier to or discrimination in trade between Member States and does not 
distort competition between them.  

(13) 

In particular, enhanced cooperation in the area of jurisdiction, applicable law and the 
recognition  and  enforcement  of  decisions  in  the  matter  of  property  regimes  of 
international  couples,  covering  both  matrimonial  property  regimes  and  the  property 
consequences  of  registered  partnerships,  complies  with  Union  law  on  judicial 
cooperation  in  civil  matters,  in  that  enhanced  cooperation  does  not  affect  any  pre-
existing acquis. 

(14)  Enhanced  cooperation  in  the  area  of  jurisdiction,  applicable  law  and  the  recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples,  covering  both  matrimonial  property  regimes  and  the  property  consequences 
of  registered  partnerships  respects  the  competences,  rights  and  obligations  of  those 
Member States that do not participate in it. The common rules on jurisdiction, conflict-
of-laws  and  recognition  and  enforcement  in  the  participating  Member  States  do  not 
affect  the  rules  of  the  non-participating  Member  States.  The  courts  of  the  non-
participating  Member  States  will  continue  to  apply  their  existing  domestic  rules  to 
determine the jurisdiction and applicable law and to the recognition and enforcement 
of decisions in the matter of property regimes of international couples, covering both 
matrimonial  property  regimes  and 
the  property  consequences  of  registered 
partnerships.  

(15)  This Decision respects the principles enshrined in the Charter of Fundamental Rights 

of the European Union, in particular Articles 9 and 21 thereof.  

(16)  Enhanced  cooperation  in  the  area  of  jurisdiction,  applicable  law  and  the  recognition 
and  enforcement  of  decisions  in  the  matter  of  property  regimes  of  international 
couples,  covering  both  matrimonial  property  regimes  and  the  property  consequences 
of registered partnerships is open at any time to all Member States, in accordance with 
Article 328 of the Treaty on the Functioning of the European Union, 

HAS ADOPTED THIS DECISION:  

Article 1 

The  Kingdom  of  Belgium,  the  Republic  of  Bulgaria,  the  Czech  Republic,  the  Federal 
Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the 
Republic of Croatia, the Italian Republic, the Grand Duchy of Luxembourg, the Republic of 
Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the 
Republic  of  Slovenia,  the  Republic  of  Finland  and  the  Kingdom  of  Sweden  are  hereby 
authorised to establish enhanced cooperation between themselves in the area of jurisdiction, 
applicable  law  and  the  recognition  and  enforcement  of  decisions  in  the  matter  of  property 
regimes  of  international  couples,  covering  both  matrimonial  property  regimes  and  the 
property consequences of registered partnerships, by applying the relevant provisions of the 
Treaties.  

EN 

16 

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This Decision shall enter into force on the day of its adoption.  

Article 2 

Done at Brussels, 

For the Council 
The President 

EN 

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